Hashatsi fights on

Lesotho Times - - Front Page - Tefo Tefo

LIEU­TENANT-COLONEL Tefo Hashatsi, has lost a court bid to have the SADC in­quiry into the death of for­mer army com­man­der Maa­parankoe Ma­hao de­clared il­le­gal.

The Le­sotho De­fence Force (LDF) Spe­cial Forces com­man­der had filed an ur­gent ap­pli­ca­tion on 16 Oc­to­ber 2015 be­fore the High Court chal­leng­ing the com­mis­sion’s le­git­i­macy, and ar­gu­ing that it had vi­o­lated terms of its for­ma­tion by hear­ing ev­i­dence in South Africa while it was es­tab­lished by a Le­sotho law.

Lt-col Hashatsi also ac­cused the com­mis­sion, and in par­tic­u­lar its chair­man Jus­tice Mpa­phi Phumaphi, of bias against him. LtCol Hashatsi ac­cused the Botswana judge of mak­ing him ap­pear as if he was the prime sus­pect in the killing of for­mer LDF com­man­der Maa­parankoe Ma­hao.

Lt-gen Ma­hao was shot dead on 25 June 2015 by his army col­leagues while be­ing ar­rested for al­legedly be­ing the rin­gleader of a group of sol­diers who had plot­ted to topple the LDF com­mand.

How­ever, on Mon­day se­nior High Court judge, Jus­tice Tšeliso Mon­aphathi, dis­missed the chal­lenge say­ing it was pre­ma­ture for LtCol Hashatsi to seek to nul­lify the SADC com­mis­sion be­fore it had com­pleted its in­quiry. The re­port was tabled in the Na­tional As­sem­bly on Mon­day by Prime Min­is­ter Pakalitha Mo­sisili.

“Only af­ter the com­mis­sion had re­leased its re­port could he (Lt-col Hashatsi) chal­lenge it. It is true, ac­cord­ing to Ms (Anna-mar­rie) de Vorse, that the at­tack was pre­ma­ture,” he said.

Se­nior Coun­sel de Vorse was rep­re­sent­ing the late Ma­hao’s wife, ‘Mam­phanya, who be­came the law­suit’s fifth re­spon­dent af­ter ask­ing the court to be part of the pro­ceed­ings.

The other re­spon­dents from first to fourth re­spec­tively were Dr Mo­sisili, Jus­tice Phumaphi, the SADC Com­mis­sion and At­tor­ney­Gen­eral Tšokolo Makhethe. Rights group

Trans­for­ma­tion Re­source Cen­tre also joined the case as “friends of the court”.

Jus­tice Mon­aphathi said Lt-col Hashatsi

could still chal­lenge the le­gal­ity of the SADC Com­mis­sion of In­quiry af­ter its re­lease.

“I still re­peat that Mr Hashatsi has a right to chal­lenge the com­mis­sion,” he said.

“The ini­tial chal­lenge was pre­ma­ture be­cause it came by way of a re­view, and a re­view is only done on com­pleted pro­ceed­ings.”

The judge re­jected Lt-col’s Hashatsi ar­gu­ment that the com­mis­sion acted be­yond its pow­ers by gath­er­ing ev­i­dence in ThabaNchu, South Africa where ex­iled op­po­si­tion lead­ers and mem­bers of the army gave tes­ti­monies.

“There were rea­sons why this was done,” Jus­tice Mon­aphathi noted.

“Since the com­mis­sion was a tri­bunal in terms of the Pub­lic In­quiries Act, I didn’t find any se­ri­ous state­ment in our law pre­vent­ing it from sit­ting ei­ther in Welkom, Mood­er­port or any­where.”

How­ever, Jus­tice Mon­aphathi also re­jected Jus­tice Phumaphi and the SADC Com­mis­sion’s ar­gu­ment that they were im­mune from lit­i­ga­tion in Le­sotho.

“I found this sub­mis­sion prob­lem­atic. In the first place, the Pub­lic In­quiries Act op­er­a­tionalised the com­mis­sion,” he said.

“There­fore, the com­mis­sion must op­er­ate in terms of the laws of Le­sotho.”

The judge said Lt-col Hashatsi was jus­ti­fied in mak­ing a High Court ap­pli­ca­tion in Oc­to­ber last year not to ap­pear be­fore the com­mis­sion for the se­cond time be­cause of the “wor­ri­some” at­ti­tude of Jus­tice Phumaphi.

“He (Lt-col Hashatsi) de­nied him­self an op­por­tu­nity to ap­pear be­fore the com­mis­sion be­cause the at­ti­tude of the chair­man would have man­i­fested it­self,” said Jus­tice Mon­aphathi.

“There were some is­sues that were wor­ri­some (in Jus­tice Phumaphi’s line of cros­sex­am­i­na­tion) such as the state­ment that ‘I put it to you’.

“I have never heard (such line of ques­tion­ing) in this ju­ris­dic­tion com­ing from the bench. It sug­gested that the chair­man new some­thing that the wit­ness didn’t know.”

The judge did not make any or­der with re­gards to the costs of suit.

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